国外合同法之合同条款分类及相关案例 claification of contractual terms with relevant cases_合同法的经典案例分析

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国外合同法 contract law ：Claification of contractual terms

Aumptions: X= plaintiff,Y= defendant

Terms 1,2,3 = conditions

Terms 4,5,6 = warranties.1.What kind of terms they were?

a)A condition is an eential term which goes to the root of the contractb)A warranty is a promiory term collateral to the main purpose of the contractc)An intermediate term falls between a condition and a warranty, it is capable of a variety of

breaches and whether or not right to terminate depends on the gravity of the breach and its consequence

There are two situations:

1> A term might be treated as a condition because of the expre words used by the

parties, such that ‘any breach of(…)will give rise to a right to terminate’().However the use of the word ‘condition’ or ‘warranty’ is not conclusive when parties do not use the word in its technical legal sense（2> Where there is lack of expre designation by the parties;it should be relied upon the eentiality test that without such strict or substantial performance of term which ought to have been apparent to the other party, a party would not have entered into the contract.In aeing which terms were conditions and which were warranties, according to in this case it was more likely that(…terms1, 2, 3…)were conditions whereas(…terms 4, 5, 6…)were warranties.Because, first the contract between X and Y was purposed to…;secondly, compared with other terms, in the absence of Y’s clear language that(…terms 1, 2, 3…), X would not have contracted with Y

As well, the lack of a strict or substantial performance of(…terms1, 2, 3…)would cause either a fundamentally change in contract or serious consequences for X since the substantial benefit X should obtain from the contract was removed / X has been suffered considerably from Y’s failure in performing those promises.2.Remedies

a)X could be entitled to terminate the contract and/or sue for damages based on the

breach of conditions(namely terms 1 /2 /3)

b)Otherwise X could only sue Y for damages due to the breach of warranty